[From Mortimus Nijhoff, The Hague, 1966]

UNILATERAL DENUNCIATION OF TREATY BECAUSE OF PRIOR VIOLATIONS OF OBLIGATIONS BY OTHER PARTY

(By Bhek Pati Sinha, Indiana State University-Foreword by Oliver J. Lissitzyn, Columbia University)

The Franco-American Treaties, 1778-17901

Between 1778 and 1790 the United States and France contracted a number of treaties conveying consular, commercial and political contents and purposes. With the exception of one, none of the Treaties contained any clause pertaining to revision or termination.2

Soon after the coming into effect of the Treaties serious differences of opinion regarding the interpretation and application of certain clauses of the Treaties arose between the parties. However, it was not until the signing of the Anglo-American Treaty in February, 1796 (the Jay Treaty) that the rupture of the treaty links between them became a distinct possibility. France regarded the signing of the Jay Treaty by the United States as injurious to her interests and incompatible with the terms of the Treaties. The French Foreign Minister informed Mr. Monroe, the United States envoy to France, that he

saw:

In the stipulations [of the Jay Treaty] which respect the neutrality of the flag an abandonment of the tacit engagement which subsisted between the two nations on this point since the treaty of commerce of 1778. After this, Citizen Minister, the Executive Director thinks itself founded in regarding the stipulations of the treaty of 1778 which concern the neutrality of the flag as altered and suspended in their most essential parts by this act, and it would fail in its duty if it did not modify a state of things which would never have been consented to but upon the condition of the most strict reciprocity.3

The United States refused to concede the French view that the terms of the Jay Treaty were incompatible with the Franco-American Treaties and again insisted that France was guilty of clear and re

1 The Treaties unilaterally abrogated by the United States were: (1) Treaty of Amity and Commerce, 6 February 1778; (2) Treaty of Alliance, 6 February 1778; (3) Act Separate and Secret Reserving Right of King of Spain to Agree to the Foregoing Treaties. 6 February 1778; and (4) Convention defining and Establishing the Functions and Privileges of Consuls and Vice-Consuls, 14 November 1778. For the text of these treaties see Malloy, op. cit., pp. 468. 479, 482, 490 respectively.

2 See Article XVI of the Convention of 14 November 1778; Malloy, op. cit., p. 495.

3 Quoted by Justice Davis in his Opinion in the Hooper v. The United States, 22 The U.S. Court of Claims, pp. 414-415 (1887).

peated breaches of the Treaties. She, after having been rebuffed by France in her attempts to settle disputes arising from charges and counter-charges of violations of treaty obligations amicably, on 7 July 1798 enacted an act annulling the Treaties. The provisions of the act

were:

Whereas the treaties concluded between the United States and France have been repeatedly violated on the part of the French government; and the just claims of the United States for reparation of the injuries so committed have been refused, and their attempts to negotiate an amicable adjustment of all complaints between the nations have been repelled with indignity; and whereas, under authority of the French Government, there is yet pursued against the United States a system of predactory violence, infracting the said Treaties and hostile to the rights of a free and independent nation; Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the United States are of right freed and exonerated from the stipulations of the treaties and of the consular convention, heretofore concluded between the United States and France: and that the same shall not henceforth be regarded as legally obliging, on the Government or citizens of the United States.4

The United States considered her act of 7 July 1798 unilaterally annulling all the existing Franco-American treaties on the ground of prior violations of obligations by France as fully justified under international law. In 1799 the American plenipotentiaries were sent to Paris with instructions to settle the controversies existing between the two countries on the basis that the Treaties were voided by the act of 7 July 1798 and therefore they were to take the position that the commissioners should decide the claims "according to the original merits of the several cases, and to justice, equity, and the law of nations; and in all cases of complaint existing prior to the 7th of July 1798, according to the treaties and consular convention then existing between France and the United States." 5

The United States Secretary of State Mr. Pickering in October, 1799 in the instructions sent to Messrs. Ellsworth, Davis, and Van Murray, the Ministers to France, said:

The seventeenth and twenty-second articles of the commercial treaty between the United States and France of February 6, 1778, have been the source of much altercation between the two nations during the present war. The dissolution of that and our other treaties with France leaves us at liberty with respect to future arrangements; with the exception of the now preferable right secured to Great Britain by the twenty-fifth article of the treaty of amity and commerce. In that article we promise mutually that while we continue in amity, neither party will in future make any treaty that shall be inconsistent with that article or the one preceding it. We

J. B. Moore. A Digest of International Law (Washington: U.S. Government Printing Office, 1906), Vol. V. p. 356. U.S. Foreign Relations, Vol. 11, p. 317.

cannot, therefore, renew with France the seventeenth and
twenty-second articles of the treaty of 1778. Her aggressions
which occasioned the dissolution of that treaty have deprived
her of the priority of rights and advantages therein stipu-
lated.

The American representatives in Paris sought to include in the new treaty with France provisions regarding the adjustments of claims based upon the understanding that the Treaties were terminated by the United States act of 7 July 1798. The French representative, on the other hand, contended that the United States act of 7 July 1798 annulling the Treaties was without force because the United States did not have right unilaterally to terminate the Treaties. It was in the face of the French representative's denial of the right of unilateral denunciation that the American representatives declared that it

was not till after the treaty of amity and commerce of Feb-
ruary 1778 had been violated to a great extent on the part
of the French republic, nor till after explanations and an
amicable adjustment sought by the United States had been
refused, that they did on the 7th of July by a solemn public
act, declared that they were freed and exonerated from the
treaties and consular convention which had been entered into
between them and France."

The American negotiators, in a letter to the French negotiators, dated 23 July 1800, stated:

It was remarked that a treaty, being a mutual compact, a palpable violation of it by one party did, by the law of nature and of nations, leave it optional with the other to renounce and declare the same to be no longer obligatory; and that, of necessity, there being no common tribunal to which they could appeal, the remaining party must decide whether there had been such violation on the other part as to justify its renunciation. For a wrong decision it would doubtless be responsible to the injured party, and might give cause for war; but even in such case its act of public renunciation, being an act within its competence, would not be a void, but a valid act, and other nations whose right might thereby be beneficially affected would so regard it.8

The French representative refused to concede the arguments of the American representatives, noted above, and he declined to recognize any claims arising under the annulling act of 7 July, 1798. Both parties sought to postpone the resolution of their differences by providing in Article 2 of the newly negotiated treaty of 30 September, 1800 that the parties would "negotiate these subjects at a convenient time, and until they may have agreed upon these points the said treaties and conventions shall have no operation." The United States

Quoted by Justice Davis in Hooper v. The United States, see 22 U.S. Court of Claims, at 422. 7 Moore. op. cit., Vol. V. p. 4430.

U.S. Congress, Senate, Ex. Doc. 102, 19th Congress, 1st Session, pp. 612-613, cited in Francis Wharton. A Digest of International Law of the United States (Washington: U.S. Government Printing Office. 1887), Vol. II, p. 60.

Moore, op. cit., Vol. V, pp. 357-358.

Senate in giving its consent to this new treaty expunged the provisions of Article 2. The French Government consented to the excision of Article 2 provided that "the two States renounce the respective pretensions which are object of said article." 10 The United States agreed to this French reservation, and it is on the basis of acceptance of this French reservation on the part of the United States that it is often argued that the United States in effect abandoned her legal position that she had the right unilaterally to terminate the Treaties because of violations of obligations on the part of France. It appears that the United States really did not give up her legal conviction that the right of unilateral denunciation existed. Prior to, during and subsequent to the ratification of the Treaty of 1800 with the French reservation, noted above, the United States repeatedly and explicitly affirmed the existence of the rule of unilateral denunciation. It was out of certain political or policy considerations and not out of the change in legal conviction that the United States consented not to press claims against France on the basis of the Act of 7 July 1798.

The Anglo-Uruguayan Postal Agreement of 28 November 1853 11

On 7 February 1873 the Law Officers of the British Crown gave a report respecting the continuing in force of the Agreement in the face of substantial breaches of obligations on the part of Uruguay. The report in part stated:

That the Government of Uruguay having, by a recent Decree, pronounced the Postal Convention of 1853 to have had and to have no binding effect, and having infringed the spirit of that Convention by recent acts, Her Majesty's Government will, in our opinion, be justified in summarily terminating that Agreement or Convention.

We would, however, submit, for your Lordship's consideration, whether the summary termination of the Agreement may not affect contracts which may have been made for the conveyance of mails, and also may not put British interests in Uruguay to a serious inconvenience.

On these points we have no information, and your Lordship will be able to judge whether they are entitled to any weight in laying down the course of action which Her Majesty's may take.12

The report confirmed the rule of unilateral denunciation by maintaining that the United Kingdom would be justified in abandoning the Agreement on the sole ground of prior substantial breaches of obligations on the part of Uruguay.

The Anglo-Honduran Agreement of 27 August 1856 13

On 3 July 1874 the Law Officers of the British Crown submitted a report to the British Government on the legal consequences of violations of the Agreement on the part of Honduras. The report in part stated:

10 Ibid., p. 4430.

11 Hertslet, op cit., Vol. 12, p. 955.

12 Lord McNair. The Law of Treaties, op. cit., pp. 565-566.

13 British and Foreign State Papers, Vol. 46, 1855-1856, p. 158.